# EWING v. THE CITY OF PHILADELPHIA

> District Court, E.D. Pennsylvania · December 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10402452

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** December 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10402452

## How later opinions describe it (automated extraction)

- noting that correctional officers did not have a difficult choice when it came to addressing the special needs of inmates
- finding a custom where there were “multiple incidents” of police officers using reckless and excessive force in their use of batons

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:
ELLEN EWING :
:
Plaintiff, :
: CIVIL ACTION
v. : NO. 20-3170
:
THE CITY OF PHILADELPHIA, et al., :
:
Defendants. :
____________________________________:

OPINION

Slomsky, J. December 30, 2021

I. INTRODUCTION
This action arises out of allegations by Plaintiff Ellen Ewing (“Plaintiff” or “Ewing”), a
former lifeguard hired by Defendant City of Philadelphia (“the City”), that Defendant Michael
Daniels (“Daniels”), a former City employee who was a supervising lifeguard, falsely imprisoned,
assaulted, and battered her.1 (See Doc. No. 17 at 10-15.) Daniels has a history of criminal
wrongdoing, including robbery, extortion, and indecent exposure, among other things. (Id.)
Plaintiff worked as a lifeguard under Daniels during the summer of 2018. (Id.)

1 Plaintiff filed her initial Complaint (Doc. No. 1) against six Defendants: (1) The City of
Philadelphia, (2) Philadelphia Parks and Recreation Department, (3) the Fairmount Park
Conservancy, (4) Philadelphia Parks and Recreation Commissioner Kathryn Ott Lovell, (5)
Philadelphia Parks and Recreation Deputy Commissioner of Administration Marissa
Washington, and (6) Michael Daniels. (See Doc. No. 6 at 1.) Defendants Philadelphia Parks
and Recreation Department and the Fairmount Park Conservancy have been dismissed as
Defendants in this action.
In addition to asserting in this case constitutional claims against Daniels,2 Plaintiff also
alleges that the City, Kathryn Ott Lovell (“Ott Lovell”), Commissioner of the Philadelphia Parks
and Recreation Department, and Marissa Washington (“Washington”), the Deputy Commissioner
of Administration (collectively “City Defendants”), violated her substantive due process rights.3

(See Doc. No. 17 ¶¶ 59, 61-62, 64.) According to Plaintiff, the violations arose because City
Defendants created a custom of ignoring background clearance requirements and because the same
Defendants were deliberately indifferent to the need to properly train its employees on how to
conduct background checks. (Id. at ¶¶ 105-53.) The claims are brought under 42 U.S.C. § 1983.
On September 28, 2020, Defendants City of Philadelphia, Ott Lovell, and Washington filed
their first Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim upon which relief can be granted. (Doc. Nos. 4-5.) In response, Plaintiff filed an Amended
Complaint.4 (Doc. No. 6.) Defendants then filed a second Motion to Dismiss the Amended

2 Daniels has not been served with the Second Amended Complaint. All claims against him
remain and the Court need not discuss them further.

3 The Due Process Clause of the Fourteenth Amendment has two prongs: procedural due process
and substantive due process. To state a claim under § 1983 for deprivation of procedural due
process, “a plaintiff must allege that (1) he was deprived of an individual interest that is
encompassed within the Fourteenth Amendment's protection of ‘life, liberty, or property,’ and
(2) the procedures available to him did not provide ‘due process of law.’” Hill v. Kutztown,
455 F.3d 225, 233-34 (3d Cir. 2006) (citing Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir.2000)).

A substantive due process claim is different and “is reserved for the most egregious
governmental abuses against liberty or property rights, abuses that ‘shock the conscience or
otherwise offend . . . judicial notions of fairness. . . [and that are] offensive to human dignity.’”
River Nile Invalid Coach and Ambulance, Inc. v. Velez, 601 F.Supp.2d 609, 621 (D. N.J. 2009)
(quoting Weimer v. Amen, 870 F.2d 1400, 1405 (8th Cir. 1989)). Here, the Court construes
the SAC as alleging against all Defendants only a substantive due process violation.

4 The first Motion to Dismiss was denied without prejudice as moot. (See Doc No 7.) This
Motion also was filed by Defendant Fairmount Park Conservancy. (Doc. Nos. 4.) Fairmount
Park Conservancy has settled with Plaintiff. (See Doc. No. 14.)
Complaint. (See Doc. No. 8.) On April 22, 2021, in an Opinion and Order, the Court granted
Defendants’ Motion to Dismiss the Amended Complaint, but afforded Plaintiff the opportunity to
file a Second Amended Complaint (“SAC”).5 (Doc. No. 15 at 3-4.)
Plaintiff subsequently filed the SAC, which is the operative Complaint here. (Doc. No.

17.) Defendants have filed a Third Motion to Dismiss (Doc. No. 18.) On June 18, 2021, Plaintiff
filed a Response in Opposition. (Doc. No. 19.) For reasons that follow, the Third Motion to
Dismiss will be granted in part and denied in part.
II. BACKGROUND
A. Factual Background
In the Opinion and Order dated April 22, 2021, this Court dismissed Plaintiff’s § 1983
claims against City Defendants, holding that Plaintiff did not sufficiently allege (1) the presence
of a municipal custom or deliberate indifference or (2) that Defendants Ott Lovell and Washington
were personally involved in the alleged constitutional violations. (See Doc. No. 15 at 11-16.) The
Court, however, afforded Plaintiff the opportunity to “overcome the deficiencies discussed” in the

Opinion and granted her leave to file a SAC. (Id. at 17.) Plaintiff filed the SAC on May 13, 2021.
(Doc. No. 17.) In the SAC, Plaintiff alleges the following facts.6
In 2000, Defendant Daniels was hired by the City’s Parks and Recreation Department as a
seasonal lifeguard at the John B. Kelly Pool (the “Pool”), which was operated by the City. (Doc.

5 The April 22, 2021 Opinion and Order dismissed all claims against Philadelphia Parks and
Recreation Department. (See Doc. No. 15.) The SAC contains no claims against Philadelphia
Parks and Recreation Department. Therefore, all claims against it are dismissed.

6 The following facts are taken from the SAC (Doc. No. 17) and attached exhibits and are
accepted as true for purposes of this Opinion. See Mayer v. Belichick, 605 F.3d 223, 230 (3d
Cir. 2010) (“In deciding a Rule 12(b)(6) motion, a court must consider only the complaint,
exhibits attached to the complaint, matters of public record, as well as undisputedly authentic
documents if the [plaintiff’s] claims are based upon these documents.”).
No. 17 ¶¶ 13, 18.) From 2001 to 2015, Daniels pled guilty to numerous crimes, including criminal
mischief, unauthorized use of automobiles, robbery, extortion, theft, impersonating a public
servant, harassment, making terroristic threats, and indecent exposure. (See id. ¶¶ 20, 24, 28, 33.)
Plaintiff was hired in the summer of 2018 by the City to work as a lifeguard at the Pool.

(See id. ¶ 40.) In this role, Plaintiff reported directly to Daniels. (See id. ¶ 40-41.) Earlier that
year, Daniels had applied for, and was granted, a promotion to a supervisory position at the Pool.
(See id. ¶ 36.) In this role, he supervised several lifeguards, some of which, including Plaintiff,
were under the age of eighteen. (Id. ¶ 37.) Prior to the start of Plaintiff’s employment, she claims
that City Defendants ignored her background clearance requirements. (Id. at ¶ 121.)
During the course of her employment, between July 16, 2018 and August 10, 2018, she
claims that Daniels did the following without her consent:
a. Lured . . . Plaintiff into the break room at the [P]ool;
b. Cornered . . . Plaintiff in the break room;
c. Closed the door to the break room and would not let Plaintiff leave;
d. Kept Plaintiff in the break room against her consent;
e. Willfully restrained the minor Plaintiff;
f. Intended to confine the Plaintiff and did confine the Plaintiff;
g. Held the Plaintiff against her will; and
h. Repeatedly sexually assaulted the minor Plaintiff.

(Id. ¶ 43.) As a result of these alleged actions, Daniels was arrested and charged with the following
crimes: (1) unlawful contact with a minor; (2) corruption of minors; (3) indecent assault; (4)
unlawful restraint of a minor where offender is not the victim’s parent; and (5) endangering welfare
of children. (See id. ¶ 45.)7

7 According to the Docket in the Philadelphia Court of Common Pleas (Docket No. CP-51-CR-
0006783-2018), Daniels was held for trial on all charges. The case is still open.
https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-51-CR-0006783-
2018&dnh=VD4JN1OojmxnyIL6pgSm9Q%3D%3D.
The SAC identifies three official policies requiring a background check on Daniels which,
according to Plaintiff, if done properly, would have disqualified him from his position at the pool:
1. Child Protective Services Law (“CPSL”);
2. “Policy on Required Background Clearances for Volunteers and

Persons having Direct or Indirect Contact with Youth at
Philadelphia Parks and Recreation Facilities” (“Policy”); and
3. The City’s executive order requiring each of its agencies “to
identify ‘Sensitive Positions’ requiring criminal background
checks” which includes “[l]ifeguards[] and
supervisors/managers of City pool facilities.” (“Executive
Order”)
(Doc. No. 17 ¶¶ 46-56.)
The CSPL, which is the first policy, states in relevant part:
In no case shall an employer, administrator, supervisor or other
person responsible for employment decisions or involved in the
selection of volunteers hire or approve an applicant if the applicant's
criminal history record information indicates the applicant has been
convicted of one or more of the following offenses under Title 18
(relating to crimes and offenses) or an equivalent crime under
Federal law or the law of another state: Section 2702 (relating to
aggravated assault) . . . Section 2902 (relating to unlawful restraint)
. . . Section 3127 (relating to indecent exposure)

Pa. C.S.A § 6344(c)(2). 8

8 Additionally, the Policy “applies to all persons serving in any capacity of any program or
activity having direct or indirect contact with youth, age 18 years or younger, on a regular,
recurring, or intermittent basis.” (Doc. No. 17-1.) The statute also provides that “[a]n
employer, administrator, supervisor or other person responsible for employment decisions that
intentionally fails to require an applicant to submit the required documentation before the
applicant’s hiring or upon recertification commits a misdemeanor of the third degree.”
§ 6344(b)(2).
The objective of the second policy is “[t]o ensure that all individuals serving at Philadelphia
Parks & Recreation (“PPR”) facilities . . . have the current and appropriate Criminal Background
check, Child Abuse Clearance, and FBI Clearance prior to, and throughout the duration, of their
service.” (Doc. No. 17-1.) Finally, policy three, the Executive Order, identifies “sensitive

positions,” which include lifeguards, that require a background check. (Id. at ¶ 56.) By
highlighting the three policies, the SAC asserts that Defendants were “aware of” their purpose to
“keep minors, who are particularly vulnerable to being harmed, from being preyed upon by
employees who should not be in contact with them,” and by ignoring them, Defendants created a
“potential for danger” to minors. (Id. ¶¶ 108-10.)
The SAC further alleges two claims under § 1983 against City Defendants for committing
Fourteenth Amendment Substantive Due Process violations.9 In Count IV, the SAC alleges that
City Defendants created “a custom to ignore the background clearance requirements for employees
and volunteers who were likely to have contact with minors in order to more quickly staff the
positions needed at the Pool and the other City parks.” (Id. ¶ 111.) Count V alleges the City

Defendants were deliberately indifferent by failing to properly train employees responsible for
performing background checks. (See id. ¶ 142.) Both Counts IV and V allege that the City is
liable under Monell v. Department of Social Services, 436 U.S. 658 (1978), and that Ott Lovell
and Washington are liable in their individual capacity.

9 Plaintiff asserts in Counts I to III constitutional claims against Daniels under to § 1983. (See
id. at 10-15.) These claims relate to actions taken by Daniels against her and are not subject
to a Motion to Dismiss.
B. Defendants’ Third Motion to Dismiss
On May 28, 2021, Defendants filed a Third Motion to Dismiss. Defendants argue that the
due process violations against them should be dismissed because: (1) Plaintiff fails to establish
“that the City decisionmakers created or approved an unconstitutional custom that was the moving

force behind the alleged constitutional violation;” (2) Plaintiff has not shown that “City
decisionmakers were deliberately indifferent to the risk of a constitutional violation stemming
from” the failure to properly conduct background checks; and (3) Plaintiff fails to establish that
Defendants Ott Lovell and Washington were personally involved in the alleged constitutional
violations. (Doc. No. 18 at 1-2.)
On June 18, 2021, Plaintiff filed a Response in Opposition. (Doc. No. 19.) Plaintiff asserts
that because Daniels’s fifteen-year criminal history went undetected by City Defendants, this
creates an inference that they had a custom of not conducting background checks. (See id. at 9.)
Additionally, Plaintiff contends that that the CPSL, the Policy, and the Executive Order put
Defendants on notice that failing to properly train employees on how to conduct background

checks on individuals likely to be in contact with minors amounts to deliberate indifference. (See
id. at 12-13.) Lastly, Plaintiff avers that Ott Lovell and Washington were personally involved in
the deprivation of Plaintiff’s constitutional rights because they “were aware that the custom [of
ignoring background checks] would likely lead to the violation of the constitutional rights of those
under 18 who came into contact with employees who had criminal backgrounds related to child
abuse.” (Id. at 22.) For reasons that follow, Defendants’ Motion to Dismiss will be granted in
part and denied in part.
III. STANDARD OF REVIEW
The motion to dismiss standard under Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim upon which relief can be granted is set forth in Ashcroft v. Iqbal, 556 U.S. 662
(2009). After Iqbal, it is clear that “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice” to defeat a Rule 12(b)(6) motion to
dismiss. Id. at 678; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). “To survive
dismissal, ‘a complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.’” Tatis v. Allied Interstate, LLC, 882 F.3d 422, 426 (3d Cir.
2018) (quoting Iqbal, 556 U.S. at 678). Facial plausibility is “more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quotation marks omitted) (quoting Iqbal, 556 U.S. at 678).
Instead, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(quotation marks omitted) (Iqbal, 556 U.S. at 678).
Applying the principles of Iqbal and Twombly, the Third Circuit Court of Appeals in

Santiago v. Warminster Township, 629 F.3d 121 (3d Cir. 2010), set forth a three-part analysis that
a district court in this Circuit must conduct in evaluating whether allegations in a complaint survive
a Rule 12(b)(6) motion to dismiss:
First, the court must “tak[e] note of the elements a plaintiff must
plead to state a claim.” Second, the court should identify allegations
that, “because they are no more than conclusions, are not entitled to
the assumption of truth.” Finally, “where there are well-pleaded
factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement for
relief.”

Id. at 130 (alteration in original) (quoting Iqbal, 556 U.S. at 675, 679). The inquiry is normally
broken into three parts: “(1) identifying the elements of the claim, (2) reviewing the complaint to
strike conclusory allegations, and then (3) looking at the well-pleaded components of the
complaint and evaluating whether all of the elements identified in part one of the inquiry are
sufficiently alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
A complaint must do more than allege a plaintiff’s entitlement to relief, it must “show”

such an entitlement with its facts. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir.
2009) (citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008)). “[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,
the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal,
556 U.S. at 679 (second alteration in original) (citation omitted). The “plausibility” determination
is a “context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id.
IV. ANALYSIS
City Defendants argue that Counts IV (custom) and V (deliberate indifference) of the SAC
should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failing to state a

claim for which relief can be granted. (See Doc. No. 18 at 1-2.) In deciding this claim, the Court
first will discuss the analytical framework under § 1983 and Monell v. Department of Social
Services. Second, each claim will be considered as it relates to the City.10 Finally, the Court will
discuss each claim as it relates to Ott Lovell and Washington.

10 In Counts IV and V of the SAC, Plaintiff has named as defendants in each Count, the City, Ott
Lovell, and Washington. Because the allegations asserted against them are described in a
single Count, the Court has attempted to separate the claims consistent with the language in
the Count.
A. The Analytical Framework of 42 U.S.C. § 1983 and Monell v. Department of
Social Services

Plaintiff alleges that Defendants had a custom of ignoring statutory requirements for
mandatory background checks for incoming employees and exhibited deliberate indifference by
failing to properly train employees on how to conduct background checks, all in violation of
Plaintiff’s Fourteenth Amendment due process rights under § 1983. Section 1983 states, in
relevant part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. In Monell v. Department of Social Services, the United States Supreme Court
held that municipal entities can be subject to § 1983 liability in limited circumstances. 436 U.S.
658, 690 (1978). Under Monell, to state a § 1983 claim against a municipality, a plaintiff must
establish that (1) a constitutionally protected right has been violated,11 and (2) the alleged violation
resulted from a municipal policy, custom, or deliberate indifference. 12 See id. at 694-95; Andrews
v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990).
The gravamen of Monell and its progeny is that “recovery from a municipality is limited
to acts that are, properly speaking, acts ‘of the municipality’—that is, acts which the municipality
has officially sanctioned or ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986).

11 Defendants do not contend in their Motion that Plaintiff has not established a violation of a
constitutionally protected right. Therefore, this element will be considered met and need not
be discussed further in this Opinion.

12 Plaintiff does not allege in the SAC a Monell claim based upon the “policy” prong.
In other words, the constitutional deprivation must have its origin in the policy, custom, or
deliberate indifference of the municipality, and liability based on the actions of city officials exists
only where it can be shown that the officials acted in accordance with that policy, custom, or
deliberate indifference. See Monell, 436 U.S. at 694.

As the Third Circuit explained in Forrest v. Perry:
[A] § 1983 claim against a municipality may proceed in two ways.
A plaintiff may put forth that an unconstitutional policy or custom
of the municipality led to his or her injuries, or that they were caused
by a failure or inadequacy by the municipality that “reflects a
deliberate or conscious choice.”

930 F.3d 93, 105 (3d Cir. 2019) (internal citations omitted).
B. Claims against the City of Philadelphia
1. Defendant City of Philadelphia’s Motion to Dismiss Count IV will be granted
because Plaintiff has not established a Monell claim based on custom.

In Count IV, Plaintiff alleges that Defendant City of Philadelphia violated her substantive
due process rights under the Fourteenth Amendment by creating a custom of ignoring background
clearance requirements for incoming employees as required by the three policies noted above, the
CPSL, the Policy, and the Executive Order. (See Doc. 17 at 7-8, ¶¶ 46-54.) In their Third Motion
to Dismiss, Defendants contend that this claim should be dismissed because Plaintiff fails to
establish “that the City decisionmakers created or approved an unconstitutional custom that was
the moving force behind the alleged constitutional violation.” (See Doc. No. 18 at 1.) For reasons
that follow, the claims in Count IV against the City of Philadelphia will be dismissed.
A custom “is an act 'that has not been formally approved by an appropriate decision-maker,'
but that is 'so widespread as to have the force of law.’” Natale v. Camden Cty. Corr. Facility, 318
F.3d 575, 584 (3d Cir.2003) (quoting Bd. of the Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S.
397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)). A plaintiff can show custom in a variety of
ways. For instance, he or she can make specific reference to “multiple incidents” which establish
a particular custom. See Harris v. City of Philadelphia, 171 F. Supp. 3d 395, 401-02 (E.D. Pa.
2016) (finding a custom where there were “multiple incidents” of police officers using reckless
and excessive force in their use of batons). Moreover, a plaintiff can conduct a statistical analysis

of lawsuits against a municipality for a violation of a particular constitutional right. See Simpson
v. Ferry, 202 F. Supp. 3d 444, 452 (E.D. Pa. 2016) (permitting a Monell claim to proceed following
a review of the plaintiff’s statistical analysis about the number of lawsuits brought against the
Philadelphia Police Department for use of excessive force).
Here, the SAC provides no factual support, statistical or otherwise, for its assertions that
the City consistently failed to properly conduct background checks of its employees. Plaintiff
alleges only that the City ignored the background clearance requirements for herself and Daniels.13
Apart from these two instances, the language in the SAC that the City failed to properly perform
background checks is conclusory. And alleging two instances of the City failing to conduct
background checks is not sufficient enough to plausibly suggest that there was a widespread

custom. See e.g., Mulholland v. Gov’t Cnty. of Berks, 706 F.3d 227, 238-39 (3d Cir. 2013)
(upholding district court’s finding that single deviation from policy requiring compliance with
CPSL “cannot be said to have been influenced by some ‘policy or custom of [a municipal
agency]’”) (citation omitted). It follows that two deviations by a City that employs thousands of
people would not establish a “custom.” Accordingly, Count IV will be dismissed as to the City.

13 With respect to Daniels, given the fifteen-year timeframe of his criminal violations, an
inference arises that the City did not do a proper background check on him.
2. Plaintiff has stated a Monell claim for deliberate indifference against the City
because the SAC alleges that the City knew that the failure to properly train
its employees on how to conduct background checks would result in frequent
constitutional violations.

As noted, in Count V, Plaintiff asserts that the City was deliberately indifferent to
violations of her constitutionally protected rights. (See Doc. No. 17 at 17.) Specifically, Plaintiff
contends that the City did not properly train its employees on how to perform background checks.
(Id. at ¶ 140.) In their Motion to Dismiss, the City argues that Plaintiff offers only conclusory
allegations that the City was deliberately indifferent to the risk of constitutional violations
stemming from the failure to properly train employees on how to perform background checks.
(Doc. No. 18 at 1-2.)
When the alleged “custom at issue is a failure to train or supervise, the plaintiff must show
that this failure ‘amounts to deliberate indifference to the rights of persons with whom [the
municipality’s] employees will come into contact.’” Johnson v. City of Philadelphia, 403 (3d Cir.
2020) (internal quotation marks omitted) (quoting Thomas v. Cumberland Cnty., 749 F.3d 217,
222 (3d Cir. 2014) (citation omitted)). In the failure-to-train context, the United States Supreme
Court explained the scope of liability as follows:
It may seem contrary to common sense to assert that a municipality
will actually have a policy of not taking reasonable steps to train its
employees. But it may happen that in light of the duties assigned to
specific officers or employees the need for more or different training
is so obvious, and the inadequacy so likely to result in the violation
of constitutional rights, that the policymakers of the city can
reasonably be said to have been deliberately indifferent to the need.

Harris, 489 U.S. at 390.
And although it is true that “a pattern of similar constitutional violations by untrained
employees is ordinarily necessary” to make out a failure to train claim under Monell, the need for
training in a given situation may be “so obvious” that failure to do so amounts to an
unconstitutional policy “even without a pattern of constitutional violations.” Davis v. City of
Philadelphia, 284 F. Supp. 3d 744, 756 (E.D. Pa. 2018) (quoting Thomas v. Cumberland Cty., 749
F.3d 217, 223 (3d Cir. 2014)).
In the Third Circuit, the following elements determine whether a plaintiff can state a claim

for deliberate indifference:
(1) municipal policymakers know that employees will confront a
particular situation, (2) the situation involves a difficult choice or a
history of employees mishandling, and (3) the wrong choice by an
employee will frequently cause deprivation of constitutional rights.

Forrest, 930 F.3d at 106 (citing Carter v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999)).
When alleging a claim for deliberate indifference, a plaintiff need not identify a specific municipal
policymaker. See Erdreich v. City of Philadelphia, 18-CV-2290, 2020 WL 1888957 at * 16 (citing
Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003)) (noting that while
“plaintiff does not identify a specific municipal policymaker, based on the strength of the
allegations in the [complaint], an inference may be made that policymakers” did not properly train
police officers in providing adequate medical care).
Here, Plaintiff has alleged sufficient facts showing that the City was deliberately indifferent
to her rights and the rights of others similarly situated by failing to train its employees on how to
properly conduct background checks. She explains that Daniels worked as a lifeguard despite the
three policies described above that would have disqualified him from the position. (Doc. No. 17
at ¶ 142.) Additionally, the three policies are evidence that the City knew the consequences to
minors of failing to properly train its employees in conducting background checks. Thus, a
discussion of each element of deliberate indifference ensues.
a. Defendants knew that employees will confront this particular
situation.

The first element is whether municipal policymakers would know that the employees will
confront a particular situation. In the SAC, Plaintiff alleges that “Defendants . . . were aware of
the purpose of the CPSL” and that “[t]he written Policy itself is evidence that the Defendants were
aware of the consequences and danger caused by ignoring the stated Policy.” (Doc. No. 19 at 15-
16) (internal quotation marks omitted) (quoting Doc. No. 17 ¶ 60.) In its Motion, the City does
not argue that it did not know that employees in certain positions would be in contact with minors
who would be placed in a compromising position. For this reason, this element is uncontested.
In any event, the SAC plausibly alleges that, at a minimum, the City was on notice, given
the purpose of the three policies, which was to ensure that supervisors who will be in direct or
indirect contact with minors underwent mandatory background screenings. Additionally, there is
little doubt that the CPSL, Policy, and Executive Order were enacted in order to prevent the types
of injuries alleged in this case. Therefore, when viewing the allegations in the SAC in a light most
favorable to Plaintiff, it is plausible that the City knew that its employees would encounter this
situation.
b. Employees had a powerful incentive to make the wrong choice.
The second element covers situations involving difficult choice or a history of employee
mishandling. “A ‘difficult choice’ is one that requires more than the application of common sense”

or that may exist where “although the proper course is clear, the employee has powerful incentives
to make the wrong choice.” Peters v. Cmty. Educ. Ctrs., Inc., No. 11-0850, 2014 WL 981557, at
*8 (E.D. Pa. Mar. 13, 2014) (quoting Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir.
1992)). The “employees” in this case are the City employees who conduct background checks.
See e.g., id. (noting that correctional officers did not have a difficult choice when it came to
addressing the special needs of inmates).
Here, the SAC alleges that “Defendants . . . were . . . aware that employees had difficulty
finding qualified applicants for positions and would be forced to decide between filling the position

or performing a background check and possibly disqualifying the only applicant.” (Doc. No. 17 ¶
140; see also id. ¶ 129.) Ordinarily, the choice to require an incoming employee to undergo a
background check is simple. But taking all facts in the Complaint as true, the SAC sufficiently
alleges the existence of “powerful incentives” to make the wrong choice despite a simple and
straightforward one. Accordingly, Plaintiff has met her burden in alleging the second prong of
deliberate indifference.
c. Plaintiff has shown that failing to properly conduct background
checks would frequently cause constitutional deprivations.

Finally, Plaintiff asserts that she has met the third element: the wrong choice by City
employees could cause constitutional violations to her and those similarly situated. (See Doc. No.
17 at 21 ¶144.) In response, the City argues that Plaintiff’s failure to train claim should be
dismissed because there is no evidence that the failure to screen employees has caused a pattern of
constitutional violations. But as noted earlier, the need for training may be “so obvious” that the
failure to do so amounts to an unconstitutional policy even without a pattern of constitutional
violations.
Here, based on the facts alleged in the SAC, and viewing them in a light most favorable to
Plaintiff, the need to properly train City employees on how to conduct background checks is “so
obvious” that the failure to do so amounts to deliberate indifference. In this case, it is evident that
City employees need more or different training in conducting the checks. Based on the strength
of the allegations in the SAC, it plausibly alleged that City policymakers did not train City
employees on how to properly conduct background checks, especially for positions involving
frequent contact with minors. Further, failing to properly investigate employees’ backgrounds
could frequently cause Fourteenth Amendment violations, such as those experienced by Plaintiff.
For all these reasons, the City’s Motion to Dismiss Count V will be denied.

C. Counts IV and V against Ott Lovell and Washington will be dismissed because the
SAC does not allege sufficient facts to show that either were personally involved
in the constitutional violations.

Finally, Plaintiff contends that Defendants Ott Lovell and Washington were personally
involved in her constitutional injuries. In their Motion, both Defendants state that Plaintiff fails to
establish personal involvement. (Doc. No. 18 at 1-2.) Specifically, they ask the Court to disregard
Plaintiff’s “conclusory assertions that Defendants Ott Lovell or Washington were aware of the
custom at issue or were deliberately indifferent to the risk posed by inadequate screening for
newly-hired employees.” (Doc. No. 18 at 11.) They further allege that the SAC shows that they
were not personally involved with Daniels or the allegations made by Plaintiffs against him
because they are supervisors in a Department with 700 full-time employees and more than 2,200
part-time, seasonal employees.
As supervisors, their liability is analyzed based on this position. To succeed on a
supervisory liability theory, a plaintiff must show that (1) a supervisor’s personal involvement (2)
proximately caused (3) plaintiff’s injury. 14 Santiago, 629 F.3d at 129-30. Personal involvement
can be alleged in two ways. The first theory provides that:
Individual defendants who are policymakers may be liable under §
1983 if it is shown that such defendants, “with deliberate
indifference to the consequences, established and maintained a
policy, practice or custom which directly caused [the] constitutional
harm.”

14 Defendants have not contested either the proximate cause and injury elements in their Motion
to Dismiss. Thus, these elements of supervisory liability are considered established.
A.M. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (quoting Stoneking v.
Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir.1989). Second, “a supervisor may be
personally liable under § 1983 if he or she participated in violating the plaintiff's rights, directed
others to violate them, or, as the person in charge, had knowledge of and acquiesced in his
subordinates' violations. Id. (quoting Baker v. Monroe Township, 50 F.3d 1186, 1190–91 (3d
Cir.1995)).
To establish knowledge and acquiescence of a subordinate's misconduct, a plaintiff must
allege the defendant's (1) contemporaneous knowledge of the offending incident or knowledge of
similar incidents in the past, and (2) actions or inactions which communicated approval of the

subordinate's behavior. Broadwater v. Fow, 945 F.Supp.2d 574, 588 (M.D. Pa. 2013) (citing C.H.
ex rel. Z.H. v. Oliva, 226 F.3d 198, 202 (3d Cir.2000). Allegations of participation or actual
knowledge and acquiescence must be made with appropriate particularity. Rode v. Dellaciprete,
845 F.2d 1195, 1207 (3d Cir. 1988).
Both the SAC and the Motion to Dismiss discuss the second basis of supervisory liability.
More specifically Plaintiff alleges that both Ott Lovell and Washington “had knowledge and
acquiesced in [their] subordinates” violations.” Baker, 50 F.3d at 1190–91. The SAC, however,
does not allege in Counts IV and V the appropriate level of particularity to show that Plaintiff is
entitled to relief against Ott Lovell and Washington based upon the theory of supervisory liability.

No allegations are made that they personally were aware not only of Daniels background, but also
that a proper background check on him was not done. Merely alleging that they “had knowledge
and acquiesced in their subordinates’ violations” is conclusory and only a threadbare recital of
alleged liability.
Court decisions support these conclusions. For example, in Reaves v. Vaugh, a fight
ensued between a corrections officer and an inmate after the officer searched the inmate’s cell and
found contraband. 00-CV-2786, 2001 WL 936392 at *1 (E.D. Pa. 2001). The inmate filed a
lawsuit against various corrections officers, including the superintendent of the prison. Id. at *4.

The court found that the superintendent “did not personally search [plaintiff’s] cell, did not use
any force against [plaintiff], and did not personally acquiesce in [subordinate officers’] alleged
wrongful conduct.” Id. When Plaintiff tried to argue that the superintendent could be held liable
because he supervised the officers, the court noted that “the mere fact that a named defendant is in
a supervisory position is insufficient to establish liability under § 1983, as the doctrines of
vicarious liability or respondeat superior do not apply to § 1983 claims.” Id. (citing Oliva, 226
F.3d at 201-02).
In contrast is the case Zion v. Nassan, 727 F.Supp.2d 388 (W.D. Pa. 2013). In Zion, two
state troopers shot and killed an unarmed person. Id. at 392-93. His estate brought a supervisory
liability claim against the troopers’ supervisors at the Pennsylvania State Police. Id. The

complaint alleged that one of the troopers had a history of violence, and even at one point was held
liable for killing a twelve-year old boy. Id. The court found that the estate had pled sufficient
facts to show that the supervisors were aware of this history of violence. Id. at 407. Specifically,
they alleged “that supervisory defendants received information and reports regarding prior
physical altercations involving [the trooper] and misconduct on the part of [the same trooper].” Id.
Here, Plaintiff contends that both Defendants Ott Lovell and Washington were aware of
the custom of failing to ignore background clearance requirements and were deliberately
indifferent to the need to properly train city officials on screening employees. (Doc. No. 17 ¶ 109,
141, 149.) However, the SAC does not describe with sufficient particularity how both Defendants
were aware. Plaintiff does not offer facts that show Ott Lovell and Washington knew about
Daniels’ criminal history or his purported attacks on her. She also does not offer facts that they
knew that their employees were not complying with background clearance requirements.
Additionally, Plaintiff asserts that part of Defendant Ott Lovell’s role as Commissioner for the

Department is “oversee[ing] 700 full-time employees, and more than 2,700 part-time and seasonal
employees,” (id. ¶ 57) while Defendant Washington “over[sees] human resources.” (Id. ¶ 58.)
Similar to Reaves, these facts only suggest that Ott Lovell and Washington supervised employees
who, without their personal knowledge, ignored background clearance requirements. Thus, the
SAC does not plausibly allege facts to establish supervisory liability under § 1983. Consequently,
Defendants’ Motions to Dismiss Counts IV and V will be granted as to Ott Lovell and Washington.
V. CONCLUSION
For the foregoing reasons, the Motion to Dismiss (Doc. No. 18) filed by Defendants City
of Philadelphia, Kathryn Ott Lovell, and Marissa Washington will be granted in part and denied
in part. The Motion to Dismiss Count IV will be granted as to all Defendants. The Motion to

Dismiss Count V as to the City of Philadelphia will be denied. The Motion to Dismiss Count V as
to Defendants Ott Lovell and Washington will be granted. An appropriate Order follows.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10402452. Public record. Not legal advice.